Abbott asks to remove school finance judge

AUSTIN — Attorney General Greg Abbott's office sought to remove the judge presiding over the public school finance case Monday, contending that his impartiality is in question due to email exchanges with lawyers that filed the lawsuit.

A lawyer for one group of the school districts that sued over the funding system, David Thompson, said state District Judge John Dietz has been impartial and that state lawyers have had the same opportunity to communicate with the judge. Abbott's office said the state wasn't notified of the communications with plaintiffs or given a chance to respond.

The school finance case has been raised as a campaign issue in the governor's race between Abbott, a Republican, and Democratic Sen. Wendy Davis.

Davis contends that he is defending a system that is “indefensible,” highlighting money cut from schools in 2011 when the state faced a projected revenue problem. A chunk of the money, but not all of it, was restored in 2013. Abbott has said he is focused on the future and wants to improve education.

Dietz ruled the school funding system unconstitutional last year in a lawsuit filed in the wake of the cuts, but he reopened the case after lawmakers overhauled graduation standards and restored a big piece of the $5.4 billion in state money cut previously.

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The attorney general's motion cited a series of emails between the judge or his staff and lawyers for those who sued regarding the merits of the litigation, particularly the judgment, findings of fact and conclusions of law.

The exchange occurred between March 19 and mid-May, said the motion, contending that “some of the emails' content suggest that the judge is coaching the plaintiffs' counsel in order to improve their case.”

That raises a question about his impartiality, the motion said.

“Trying a case in front of an unbiased and impartial judge is a cornerstone of the American system of jurisprudence, particularly in this case involving Texas' public school finance system, which potentially affects nearly every student, teacher, parent, property owner and taxpayer in the state,” says Abbott's motion. Schools are funded by federal and state aid and local school property tax revenue.

The motion asks that Dietz recuse from the case or that the matter be referred to the regional presiding judge for consideration.

Thompson said plaintiffs will be filing a response soon.

“We don't think there is a solid basis for it,” Thompson said of the state's motion. “Certainly nothing has been done that the state was in the dark about.”

Thompson said his recollection is that all parties were treated fairly during the trial.

He said plaintiffs submitted proposed findings after the evidence was concluded, and that the state had the opportunity to do so as well.

“We'd had some back and forth with the judge and his staff to refine those findings to reflect what he ultimately thinks the decision ought to be,” Thompson said.

In the end, he said, the judge must shape a decision.

“Obviously, you want to run a fair and even-handed trial,” Thompson said, adding, “What is the very nature of being a judge? Ultimately you have to pick a side.”

The group of 84 school districts represented by Thompson includes Houston Independent School District and several school districts in Bexar County.

Peggy Fikac is Austin bureau chief and columnist for the San Antonio Express-News, delving into politics and policy in areas including the state budget, where the intersection of the two is compelling.

She covers Gov. Greg Abbott, who won the state’s top seat after a nationally noticed campaign against Wendy Davis; dug into Ted Cruz’s ascent to the U.S. Senate; covered George W. Bush as governor and during his races for president; and has bird-dogged Rick Perry’s tenure as Texas’ longest-serving governor, his White House ambitions and his indictment.

Peggy was bureau chief for the Houston Chronicle as well as the Express-News for more than five years when the two combined their Austin operations.

She previously worked for the Associated Press, where she covered the late Ann Richards during both of her campaigns for governor and specialized in public education and legislative coverage. Peggy also has been the correspondent for three Rio Grande Valley newspapers, starting as a senior at her alma mater, the University of Texas at Austin.